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Olbrich - Dust Diseases Tribunal



                                                DDT No. 108 of 2012 and 108 of 2012/1

                                       HANS OLBRICH
                                       CGU INSURANCE LIMITED
                                                                          First Defendant

                                       BAS INVESTMENTS PTY. LIMITED
                                                            Second Defendant

                                       WALLABY GRIP (BAE) PTY. LIMITED (IN

                         CONTRIBUTIONS ASSESSMENT


The Registrar referred this matter to me pursuant to Clause 49 (1) of the Dust Diseases
Tribunal Regulation 2007 (“the Regulation”) for a determination of apportionment as
between the Defendants.

My determination is to be made on the papers, on the assumption that the Defendants
are liable, and applying the Dust Diseases Tribunal (Standard Presumptions – Apportionment)
Order 2007 (“the Standard Presumptions”).

I have the Tribunal file which includes:

(a)    the Plaintiff’s Statement of Claim, Amended Statement of Claim and the
       Plaintiff’s Statement of Particulars;

(b)    a Reply of CGU;

(c)    a Reply of BAS and an affidavit of Frank Placko as well as a Cross-Claim joining
       BAE as a cross-defendant.

(d)    BAE has not filed a Reply or entered an appearance

The Plaintiff’s History of Exposure

The Plaintiff is currently 70 years of age and suffers mesothelioma. His first period of
exposure was between early 1975 and early 1977 while employed by E.J. Fretus & Sons
Pty. Limited (E.J. Fretus). That company held a policy of insurance with South British
United Insurance, and in turn the First Defendant, CGU, is the entity responsible for the
liabilities of South British United. Leave has been granted to sue CGU in place of the
employer which is a de-registered company.

In his employment with E.J. Fretus, the Plaintiff was a maintenance fitter and welder. He
undertook the welding and repair of garbage trucks and the re-lining of brake shoes. This
involved taking the wheels off and blowing out the dust with air which created a cloud of
dust that the Plaintiff could see in the air. He then took the brake shoes into the
workshop and chiselled off the asbestos lining. He cleaned everything with a wire brush
which also created a lot of dust. The trucks used asbestos brake linings that needed to be
ground down using an angle grinder to suit the individual drum. The Plaintiff does not
know who manufactured the brake linings. The Plaintiff was also exposed by the
activities of two other mechanics in the workshop performing similar work. The Plaintiff
says he was covered in dust all day and that the conditions were cramped. The Plaintiff
says he worked on the brake shoes about 10 hours per week and was always close to the
other two mechanics when they were doing this work as well.

In 1979, the Plaintiff said he worked for a labour hire company called EIC. He was sent
to the Shell Refinery at Clyde where he worked on piping which required cutting off the
existing insulation using a hacksaw and knife. However, the Plaintiff says he was only
there for a “few days at the most”. Compared to his other exposure, I accept that this period
is a very small proportion of the overall exposure. No Defendant is joined for this

The Plaintiff then worked for about 12 months in 1979 with the Second Defendant
(BAS) which was then called Ralph Symonds. He was employed in a maintenance team
responsible for repairing pipe work, steam presses and other machinery including a wood
fired boiler. Frank Placko was the maintenance foreman. The Plaintiff says he repaired
piping including in the glue room which involved removing the insulation by cutting it
with a hacksaw. The insulation looked like half pipe sections. Sometimes new asbestos
insulation was fitted after repairs which he cut to size with a hacksaw. All of this created
dust which he breathed in. The Plaintiff says that over the course of the 12 months, he
repaired insulation pipes every 2 months and there was a major shutdown over
Christmas for 2 or 3 weeks involving pipe repairs and replacing insulation.

The affidavit of Frank Placko confirms the use of asbestos in the Ralph Symonds factory
including asbestos sheets in the steam press that required replacement once a year,
asbestos rope to do repairs to boilers, pre-fabricated asbestos pipes and a specialist
asbestos product called “Kaowool” which was used as insulation for the oil-fired boilers in
the glue room. Mr. Placko confirms that with the exception of gaskets, all the other
asbestos products used in the Ralph Simons factory were supplied by “Bells at Concord”
which I understand to be a reference to Wallaby Grip.

The Plaintiff says that the intensity of exposure was heavier at E.J. Fretus (CGU) than it
was at Ralph Symonds (BAS). The Plaintiff described the exposure with E.J. Fretus as
high and with BAS Investments as low to medium.

Replies of the Defendants

Reply of CGU

CGU is in the position of not being able to confirm or deny the allegations of the
Plaintiff at this stage. At the time of filing its Reply, it had not had the Plaintiff medically
examined. Regarding apportionment, CGU says that both Defendants should be
Category 2 and apportionment should be made on the basis of time on risk with the First
Defendant responsible for a period of 24 months and the Second Defendant 12 months
thus the First Defendant carries two thirds liability and the Second Defendant one third.

Reply of BAS Investments

Similarly the Second Defendant cannot confirm or deny employment but admits control
of the premises (BAS Investments is sued both as employer and occupier).

Regarding apportionment, it says the First and Second Defendants should be Category 2
while the Cross-Defendant (BAE) is Category 1. There should be no variation of the
Standard Presumptions. It should be apportioned on a time on risk basis but suggests a
variation based upon the opinion of Dr. Breslin (attached to the Plaintiff’s Particulars).
Dr. Breslin was of the opinion that the work with E.J. Fretus made more of a
contribution to the disease because the period was longer and earlier than the period with
the Second Defendant.

The Second Defendant then says its liability should be apportioned between it and
Wallaby Grip. The period falls within Index Period C where Category 1 carries 60% and
Category 2 carries 40% liability.

Factual Findings

The Plaintiff’s condition is an indivisible disease (refer Clause 5 (7) of the Standard
Presumptions). Accordingly, the Plaintiff is entitled to recover the whole of his damages
against any single tortfeasor. It is apparent that there is no defendant liable for a small
proportion of the exposure being the period of a few days at the Shell Refinery at Clyde
in about 1979, but that does not affect the liability in this Contributions Assessment of
the available defendants for the whole of the Plaintiff’s damages.

I will apportion on a roughly time on risk approach. There was approximately 24 months
in Period 1 with the First Defendant, and 12 months in Period 2 with the Second
Defendant. The simple time on risk would suggest a two thirds/one third apportionment
between the two defendants (66.66%/33.34%).

However, I am satisfied from the Plaintiff’s description of his exposure that the intensity
with E.J. Fretus was more intense. Allowing for this variation in intensity and the view of
Dr Breslin, I adopt the submissions of the Second Defendant and vary the time on risk
approach by increasing the share of the First Defendant by 10 % and decreasing the
share of the second Defendant by the same amount. Thus, I apportion 76.66% to the
First Defendant and 23.34% to the Second Defendant.

I see no reason to alter the Standard Presumptions.

The liability attributed to the Second Defendant will be further apportioned between it
and the Cross-Defendant on the basis of 60% to the Cross-Defendant and 40% to the
Second Defendant.

The calculations are shown in the following table:

           Defendant                        Calculation               Final
                                                               Apportionment after

CGU Insurance Limited               66.66% + 10% = 76.66%              76.6%

BAS Investments Pty. Limited        33.34% - 10% = 23.34%
                                    23.34% x 40% = 9.336%              9.4%

Wallaby Grip (BAE) Pty. Limited 23.34% x 60% = 14.004%                  14%

Total                                                                  100%

Single Claims Manager

I have been asked to appoint a Single Claims Manager. Pursuant to Clause 61, I select
CGU Insurance Limited as the Single Claims Manager as it is the primary defendant.

DATED 6 July 2012

                                                           JAMES T. KEARNEY
                                                     CONTRIBUTIONS ASSESSOR


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